Karnataka High Court
Sri Balappa S/O Bhimappa Malali vs Smt. Kushnawwa W/O Venkappa Malali on 20 March, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
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IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.5197/2010(PARTN)
BETWEEN:
1. SRI.BALAPPA S/O BHIMAPPA MALALI,
AGE: 40 YEARS, OCC: TEACHER,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
2. SRI.KUSHNAPPA S/O BHIMAPPA MALALI,
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
3. SRI.VENKANNA S/O BHIMAPPA MALALI,
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
4. SRI.HANUMANT S/O BHIMAPPA MALALI,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
5. SMT.KASHAWWA W/O BHIMAPPA MALALI,
AGE: 67 YEARS, OCC: AGRICULTURE &
HOUSEHOLD WORK,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
... APPELLANTS
(BY SRI.ANAND R.KOLLI, ADV.)
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AND:
2. SMT.KUSHNAWWA W/O VENKAPPA MALALI,
AGE: 72 YEARS, OCC: AGRICULTURE AND
HOUSEHOLD WORK,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
3. SRI.ASHOK S/O VENKAPPA MALALI,
AGE: 40 YEARS, OCC: TEACHER,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
4. KUMARI. KASTURI D/O VENKAPPA MALALI,
AGE: 37 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD WORK,
R/O KULAGOD, TQ.GOKAK,
BELGAUM DISTRICT - 590001.
5. SMT.BHARATI W/O RAMANNA MALALI,
AGE: 38 YEARS, OCC: SERVICE,
WORKING IN M.G.BANK, BRANCH KILLA,
HOSAKOT, RAMDURG TALUK,
BELGAUM DISTRICDT - 590001.
6. KUMARI. MEGHA D/O RAMANNA MALALI,
AGE: MINOR, OCC: NIL,
R/BY HER M/G RESPONDENT No.4 BHARATI.
7. KUMARI SOUBHAGYA D/O RAMANNA MALALI,
AGE: MINOR, OCC: NIL,
R/BY HER M/G RESPONDENT No.4 BHARATI.
8. GANGAWWA W/O VIDHYADHAR BIDARI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O JUNNAR, TQ.MUDHOL,
BIJAPUR DISTRICT - 520012.
... RESPONDENTS
(BY SRI.DINESH M.KULKARNI, ADV. FOR R1-R3,
R4 AND R7 SERVED
R5 & R6 MINORS REP.BY R4)
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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 04.12.2009
PASSED IN R.A.NO.73/2004 ON THE FILE OF THE PRL. CIVIL
JUDGE (SR.DN.) GOKAK, ALLOWING THE APPEAL, FILED
AGAINST THE JUDGMENT DATED 13.09.2004 AND THE DECREE
PASSED IN O.S.NO.214/1997 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN.) GOKAK, DISMISSING THE SUIT FILED FOR
PARTITION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is directed against the judgment and decree passed in regular appeal bearing R.A.No.73/2004, which was pending on the file of the Principal Civil Judge (Sr.Dn.) Gokak. Appellants herein are the defendants of an original suit bearing O.S.No.214/1997. Respondents herein are the plaintiffs in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.
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2. Suit had been filed by the defendants seeking 1/3rd share in their favour in respect of the schedule property. The said suit had been contested by the defendants stating that the properties are not joint family properties and they are exclusive properties of Bhimappa, the father of defendant Nos.1 to 4 and husband of defendant No.5. On the basis of the above pleadings, following issues came to be framed.
i) Whether the plaintiffs No.1 to 3 proves that the suit property is the joint family property of the plaintiffs and defendants?
ii) Whether the plaintiffs No.1 to 3 prove that they are jointly entitled for 1/3rd share in the suit property by effecting partition and separate possession?
iii) Whether the plaintiffs No.1 to 3 prove that they are entitled for mesne profits from the date of the suit?5
iv) Whether the defendants No.1 to 8 prove that they are the exclusive owners of the suit property?
v) Whether the defendants No.1, 2, 3, 4 and 5 prove that this court has no jurisdiction to try the suit?
vi) What order or decree?
Additional issues:
i) Whether the defendants No.1 to 5 prove that the suit is hit by law of limitation?
ii) Whether the payment of court fee is not correct?
3. Four witnesses have been examined on behalf of the plaintiffs and 11 exhibits have been got marked on behalf of the plaintiffs. Two witnesses have been examined on behalf of the defendants and 19 exhibits have been got marked on their behalf. Ultimately, suit came to be dismissed after contest by holding issue Nos.1 to 5 in the negative and additional issue Nos.1 and 2 in the affirmative.
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4. As against the said judgment and decree, plaintiffs chose to file an appeal under Section 96 of CPC before the Court of the Principal Civil Judge (Sr.Dn.), Gokak in R.A.No.73/2004. Several grounds have been raised in the said appeal challenging the judgment and decree passed in O.S.No.214/1997. Ultimately, appeal has been allowed and the judgment passed by the trial Court is set aside. The 1/3rd share has been granted to plaintiff Nos.1 to 3.
5. After hearing the learned counsel for the appellants, following substantial questions of law have been framed.
i) Whether the first appellate Court is justified in allowing the appeal and reversing the judgment of the trial Court by ignoring the material evidence placed on record and therefore, it is perverse and illegal?
ii) Whether the quantification of share done by the first appellate Court is just and proper? 7
6. As could be seen from the judgment of the trial Court, one Hanamant @ Hanamappoa B.Malali was the propositus. He had a wife by name, Gangawwa and both of them are no more. They were survived by three sons and one daughter namely, Rangappa, Bhimappa, Venkappa and a daughter by name Rukmawwa. The said Rukmawwa died issueless. Rangappa had a wife by name Chinnawwa and both of them died issueless. The said Chinawwa was defendant No.9 in the trial Court and she died during the pendency of the regular appeal. Bhimappa and Venkappa are also dead. Venkappa's wife Kushnawwa is plaintiff No.1 and her children Ashok and Kasturi are plaintiff Nos.2 and 3. Bhimappa is survived by 5 sons namely, Ramanna, Balappa, Kushnappa, Venkanna and Hanamant and one daughter by name, Gangawwa. Balappa is defendant No.1, Kushnappa is defendant No.2, Venkanna is defendant No.3 and Hanamant is defendant No.4. Ramanna is dead and is survived by his wife and children and they were arrayed as defendant Nos.6 to 8. Gangawwa is defendant No.10.
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7. The fact that all these properties originally belonged to Hanamat as his share at a partition that took place between himself and his three sons is not disputed. These properties had been allotted to Hanamant as his share and he died intestate. Therefore, the share of Hanamant will have to devolve between two branches namely, the branch of Bhimappa and the branch of Venkappa. Therefore, Venkappa's wife and children who are plaintiffs are entitled for half share, more particularly, in the light of Chinnawwa having died during the pendency of the appeal without any issues. This fact has not been properly looked into by the first appellate Court while allowing the appeal.
8. The first appellate Court has not missed any material evidence placed on record. It has rightly come to the conclusion that the share of Hanamant had devolved upon three branches namely, Rangappa, Bhimappa and Venkappa. But while quantifying of the shares, the learned Judge has forgotten the fact that Chinawwa died issueless and therefore, 9 Chinnawwa's share automatically devolved upon two branches i.e., the branch of Bhimappa and the branch of Venkappa.
9. Though the family of Hanamant was divided and the shares were allotted to Hanamant and his three sons separately, Hanamant's divided share devolved upon his three branches represented by his three sons under Section 8 of the Hindu Succession Act, more particularly, when he died intestate. In this view of the matter, it cannot be said that the first appellate Court has committed a serious error while evaluating the evidence. On the other hand, the first appellate Court has properly evaluated the evidence, taking into consideration that properties sought to be divided were the absolute properties of Hanamant, as he had got the same at a partition that took place between himself and his three sons.
10. Therefore, instead of 1/3rd share, the plaintiffs will be entitled for half share. Bhimappa's children who are 10 defendant Nos.1 to 8 and 10 are together entitled for half share. Therefore, the appeal will have to be allowed by modifying the quantum of share to be allotted to the parties.
11. Hence, the substantial question of law No.1 is held in the affirmative and the substantial question of law No.2 is held in the negative. Consequently, appeal will have to be allowed granting half share to the plaintiffs and half share to the defendant Nos.1 to 8 and 10, except defendant No.9 who is dead.
ORDER The appeal filed under Section 100 of CPC is allowed. The plaintiffs are granted half share in the suit schedule properties and defendant Nos.1 to 8 and 10 are together entitled for half share in the suit schedule properties. The judgment of the first appellate Court stands modified accordingly.
There shall be a preliminary decree and the properties shall be divided by metes and bounds under Section 54 of 11 CPC. Taking into consideration the nature of the suit and the relationship of the parties, there is no order as to costs.
SD/-
JUDGE.
MBS/-